Ministry of Social Development and Poverty Reduction

Part C – Decision Under Appeal

Appeal Number 2023-0283

The decision under appeal is the Ministry of Social Development and Poverty Reduction (ministry) reconsideration decision dated August 31, 2023, which determined the appellant was not eligible for the Persons with Disabilities designation because he did not meet the following criteria: - Severe impairment - Impairment will continue for two years or more - Direct and significant restrictions to daily living activities - Significant help required with daily living activities

The ministry also found the appellant was not one of the prescribed classes of persons eligible for Persons with Disabilities designation on alternative grounds. As there was no information or argument on this point, the panel considers it not to be an issue in this appeal.

Part D – Relevant Legislation

Employment and Assistance for Persons with Disabilities Act (Act), section 2

Employment and Assistance for Persons with Disabilities Regulation (Regulation), section 2

Relevant sections of the legislation can be found in the Schedule of Legislation at the end of this decision.

EAAT (26/10/22) 2

Part E – Summary of Facts

Appeal Number 2023-0283

Relevant Evidence Before the Minister at Reconsideration

Request for Reconsideration (July 31, 2023) – summary The appellant writes that he was able to get his medical history proving his condition will last and has lasted two years and more.

Chart Summary (provided by appellant’s doctor) (July 31, 2023) August 7, 2018  refill on medication (for chronic pain) The appellant is on chronic pain medication (long time) - Gabapentin, Tylenol, with Codeine, Voltaren

September 6, 2018  back and legs issue, ongoing pain for months since work related injury note: in obvious distress and pain, bent over and using a cane

February 23, 2020  chronic pain syndrome

March 11, 2021, x-ray of lumbosacral spine  prominent disc space narrowing present at the L4-L5 and to a mild degree at the L5-S2 level in keeping with degenerative disc disease

August 11, 2021, computed tomography of lumbar spine reason for exam – chronic back pain sudden, getting worse without any injury. conclusion: presence of a focal disc protrusion is noted on the left at the L4-L5 level

August 31, 2021, computed tomography  shows focal disc protrusion on the left L4-L5 level impinging on the L5 nerve root in the lateral recess

November 26, 2021  Anxiety

February 13, 2022  skeletal x-ray of wrist and hand

EAAT (26/10/22) 3

conclusion: no acute bone or joint injury, simp involves the lunate

Appeal Number 2023-0283

le cortical cyst most likely posttraumatic

April 6, 2022 - computed tomography (facet joint injection, left)  chronic back pain getting worse on certain times, for steroid injection  history of L4-L5 disc protrusion with degenerative changes in the posterior facet joints at this level

August 31, 2022  depressive disorder

May 2, 2023 mental visit:  history of anxiety/depression, has been stable  history of chronic back pain seems to be resolved for some time but recently started to act up  patient sounds okay, over the phone – not in distress The appellant is calm and cooperative, speaks coherently with normal pace and denies any hallucination or delusions. No suicidal ideation. He expresses good insight and judgement. Mood and affect are good and congruent.

May 21, 2023 – August 19, 2023 medications: Ach-Escitalopram, Gabapentin, Tylenol with Codeine

June 1, 2023, x-ray of lumbosacral spine  significant disc space narrowing present at the L4-L5 and to a mild degree at the L5-S1 level - in keeping with degenerative disc disease.

July 10, 2023  chronic back pain, not improving  morning stiffness  no other joint involvement  patient states he cannot stand and work full duties note: looks well, gait is normal, able to stand up from sitting position, back exam flexion is good, hyperextension with limitation, able to bend forward and finger to floor is about 20 centimetres, twisting back is okay

note – musculoskeletal back pain, anxiety seems to be well controlled

EAAT (26/10/22) 4

Appeal Number 2023-0283

Letter to the Appellant’s Doctor, from a Hea lth Clinic (January 21, 2019) The writer states that the appellant describes a one-year history of low back pain. At work he picked up a piece of equipment, felt immediate back pain and has had back pain ever since.

The writer states that the appellant notes pain in the lower lumbar region, which is worse on the left than on the right. He states, the pain can also radiate down the left leg laterally and into the dorsum of the foot and big toes. The pain is constant and never resolves. He describes the pain as a tight sensation that can be stabbing in the leg as well - rated as 7-8/10 in severity. The appellant states his pain is aggravated by walking, moving, and putting weight on the back. He gets some relief when lying down and resting. Overall his symptoms have been relatively stable with time and he does not tend to have pain on the right side.

As well, the appellant states he has constant numbness in the great toe of the left foot. This is not painful and there are no other areas of numbness. He feels the left leg is weak and he will occasionally stumble on that leg. He confirms morning stiffness, which resolves in less than an hour.

note from appellant’s social worker (included in Request for Reconsideration) The social worker states it is evident the appellant has been diagnosed with scoliosis, degenerative disc disease and chronic pain, all of which significantly limit his ability to work or perform basic daily living activities. As well, due to the nature of his condition, he cannot often take care of his personal hygiene, uses a cane at times, and has chronic and ongoing pain. The level of pain he experiences can fluctuate and often leaves him immobile.

Person with Disabilities Application (application)

Self-Report (February 28, 2023) The appellant writes that he has degenerative disc disease, arthritis, scoliosis and sciatica. He is capable of about one hour of physical activity before pain accumulates and immobilizes him for a while. Sometimes, depending on the task, he is bedridden for a day or two.

Medical Report (April 7, 2023) – signed by the appellant’s doctor The doctor (general practitioner) provided the following information and responses to the questions below.

EAAT (26/10/22) 5

A - Diagnosis lower back pain, osteoarthritis bulging disc anxiety

Appeal Number 2023-0283 Date of onset – month/year year 3

B - Health History Please indicate the severity of the medical conditions related to this person's impairment. How does the medical condition impair this person? The appellant’s back limits him at times. o Has the applicant been prescribed any medications and/or treatments that interfere with his ability to perform daily living activities? – yes The appellant is on Tylenol 3, which can affect his abilities - although the doctor states he didn’t believe this was the case when he examined the appellant. o If yes, what is the anticipated duration of medications and/treatments? – long term o Does the appellant require prostheses or aids for his impairment? – no

C - Degree and Course of Impairment o Is the impairment likely to continue for two years or more from today? – no

D - Functional Skills o How far can this person walk unaided on a flat surface? - unknown o How many stairs can this person climb unaided? - unknown o What are the person’s limitations in lifting? - unknown o How long can this person remain seated? - unknown o Are there difficulties with communication? - no o Are there any significant deficits with cognitive and emotional function? – no

E – Daily Living Activities – not completed

F- Additional Comments: While examining the appellant the doctor states he had not seen any significant concerns.

G - Frequency of Contact o How long has the applicant been your patient? – no response o Prior to today, how often have you seen this applicant in the past 12 months? – once

EAAT (26/10/22) 6

Appeal Number 2023-0283

Assessor’s Report (April 12, 2023) – signe d by the appellant’s social worker A - Applicant Information The appellant’s social worker provided the following information and responses to the questions below.

B - Living Environment The social worker states the appellant lives alone.

C - Mental or Physical Impairment o What are the applicant’s mental or physical impairments that impact his ability to manage daily living activities? The appellant has degenerative disc disease, scoliosis, and rheumatoid arthritis. He also indicated he has depression and his tinnitus impacts his hearing and speaking ability.

Ability to Communicate Please indicate the Good level of ability in the following areas speaking

reading writing hearing

Mobility and Physical Ability Indicate the assistance required related to impairment (that directly restricts the applicant’s ability to manage in the following areas). Walking indoors

Satisfactory

x

Poor

x

Unable

Explain

tinnitus which impacts his hearing and speaking ability

tinnitus which impacts his hearing and speaking ability

EAAT (26/10/22) 7 I n d e p e n d e n t P e r i o d i c a s s i s t a n c e f r o m a n o t h e r p e r s o n C o n t i n u o u s a s s i s t a n c e f r o m a n o t h e r p e r s o n o r u n a b l e U s e s a s s i s t i v e d e v i c e T a k e s s i g n i f i c a n t l y l o n g e r t h a n t y p i c a l E x p l a i n a n d

Walking outdoors Climbing stairs Standing Lifting Carrying and holding

x x x

x

x x

s p e c i f y d e v i c e

major impact

“ “

Appeal Number 2023-0283

Cognitive and Emotional Functioning For each item indicate to what degree the applicant’s mental impairment restricts his functioning. If impact is episodic or varies over time, Impact on Daily Functioning please explain. No impact Minimal Moderate Major impact impact impact Bodily functions (e.g. eating problems, x toileting problems, poor hygiene, sleep disturbance

Consciousness (e.g. orientation, alert/drowsy, confusion

Emotion (e.g. excessive or inappropriate anxiety, depression etc. Impulse control (e.g. inability to stop doing something or failing to resist doing something) Insight and judgement (e.g. poor awareness of self and health condition (e.g. grandiosity, unsafe behavior) Attention/concentration (e.g. distractible, unable to maintain concentration, poor short-term memory) Executive (e.g. planning, organizing, sequencing, abstract thinking, problem-solving, calculations) Memory (e.g. can learn new information, names etc., and then recall that information, forgets over-learned facts) Motivation (e.g. lack of initiative, loss of interest) Motor activity (e.g. increased or decreased goal-oriented activity, coordination, lack of movement, agitation, ritualistic or repetitive actions, bizarre behaviours, extreme tension)

x

x

x

x

x

x

x

x x

EAAT (26/10/22) 8

Language (e.g. expression or comprehension problems (e.g. inability to understand, extreme stuttering, mute, racing speech disorganization of speech) Psychotic symptoms (e.g. delusions, hallucinations, disorganized thinking) Other neuropsychological problems (e.g. visual/spatial problems, psychomotor problems, learning disabilities etc.) Other emotional or mental problems

D - Daily Living Activities Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the

Appeal Number 2023-0283 x

x

x

x

Explain/ Describe

following areas. Dressing x Grooming x Bathing x Toileting x Feeding self x Regulating diet x Transfers (in/out of bed) x Transfers (on/off chair) x Basic Housekeeping Laundry x Basic housekeeping x Shopping Going to/from stores x Reading prices and labels x Making appropriate choices x Paying for purchases x Carrying purchases x home Additional comments (including a description of the type and amount of assistance required and identification of any safety issues) - no response

EAAT (26/10/22) 9 I n d e p e n d e n t P e r i o d i c A s s i s t a n c e f r o m a n o t h e r p e r s o n C o n t i n u o u s a s s i s t a n c e f r o m a n o t h e r p e r s o n o r u n a b l e U s e s a s s i s t i v e d e v i c e T a k e s s i g n i f i c a n t l y l o n g e r t h a n t y p i c a l

Appeal Number 2023-0283 Meals Meal planning x Food preparation x Cooking x Safe storage of food (ability, x not environmental) Pay rent and bills Banking x Budgeting x Pay rent and bills x Medications Filling/refilling prescriptions x Taking as directed x Safe handling and storage x Transportation Getting in and out of a x vehicle Using public transit x Using transit schedules and x arranging transportation Additional comments (including a description of the type and amount of assistance required and identification of a safety issues) – no response

Social Functioning – only complete if applicant has an identified mental impairment

Indicate the assistance required related to impairment(s) that directly restrict the applicant’s ability to manage in the following areas.

Appropriate social decisions (including avoiding situations dangerous to self or others, good social judgement) Able to develop and maintain relationships

Interacts appropriately with others (e.g. understands and responds to social cues, problem solves in social context)

x

x

x

EAAT (26/10/22) 10 I n d e p e n d e n t P e r i o d i c s u p p o r t / s u p e r v i s i o n C o n t i n u o u s s u p p o r t / s u p e r v i s i o n E x p l a i n / D e s c r i b e

Appeal Number 2023-0283 Able to deal appropriately with unexpected x demands Able to secure assistance from others x Other (please specify) x Describe how the mental impairment impacts the applicant’s relationship with - immediate social network - marginal functioning – little significant participation/communication: relationships often minimal and fluctuate in quality - extended social networks – marginal functioning – little more than minimal acts to fulfill basic needs

E - Assistance Provided for Applicant

Assistance provided by other people - no information provided

Assistance provided through the use of devices What equipment or devices does the applicant routinely use to help compensate for his impairment? – no information provided

F - Additional Information As a result of chronic pain, the appellant often cannot get out of bed to perform daily activities. He cannot shower some days, or leave the house for groceries or to see friends or family. His arthritis flares at times, such as after physical activity. He has developed tinnitus in both ears and as a result often cannot hear many sounds, such as other people talking. This has impacted his ability to maintain relationships. Due to chronic pain issues, the appellant’s family doctor has diagnosed him with major depressive disorder.

H - Frequency of Contact Is this your first contact with the applicant – no How long have you known this applicant – 10 months How often have you seen the applicant in the past 12 months? – 11 or more times.

Information received after Reconsideration Decision

Appellant

Notice of Appeal (September 19, 2023) In the Notice of Appeal, the appellant states he has been living with his condition for years. He just spent a week in bed because his back decided to act up again. He adds that

EAAT (26/10/22) 11

Appeal Number 2023-0283

this happens every day to varying degrees and that he can’t stand longer than one hour. The appellant adds that he is not capable of working.

At the hearing, the appellant stated that he would not be able to sustain any employment with his health issues. He added that each day he has to make choices as to what he can manage. If he engages in increased activity he may be bedridden. The less he does, the better he feels, but if he’s stuck at home for days this affects his mental health. Recently he is seeing a psychiatrist.

The appellant stated his condition was worse before he received an injection in his back, but his foot is now numb. When he shops for groceries, he makes multiple trips over a few days. Showering and getting ready in the morning takes a long time because he needs his medication to work. Cleaning the house takes a day. He has to think about managing his activities 24/7 and 3/5 days are “bad days”. The appellant added that he has no help. His grandmother is elderly. Other family members will help when needed but are busy.

The appellant also stated that the letter dated January 21, 2019 was written to the doctor he had at the time, but he wasn’t sure by whom. His work injury that caused his health issues occurred in 2016.

Ministry The ministry relied on its record and added that if the physician doesn’t specifically say the impairment will continue for two years or more, the ministry can’t approve the application. As well, if someone who is not a prescribed professional provides information that a prescribed professional did not, the ministry cannot consider it.

The ministry added that the appellant may also want to consider the ministry’s Persons with Persistent Multiple Barriers benefit.

Admissibility The panel determined the additional information is reasonably required for a full and fair disclosure of all matters related to the decision under appeal and therefore is admissible under section 22(4) of the Employment and Assistance Act.

EAAT (26/10/22) 12

Part F – Reasons for Panel Decision

Appeal Number 2023-0283

The issue on appeal is whether the ministry’s reconsideration decision was reasonably supported by the evidence or was a reasonable application of the legislation in the circumstances of the appellant.

Did the ministry reasonably determine the appellant was not eligible for the Persons with Disabilities designation because he: - does not have a severe impairment; - does not have an impairment that will continue for two years or more; - does not have an impairment that directly and significantly restricts daily living activities, and - does not require significant help with daily living activities?

The panel notes all the above criteria is required, as per section 2(2) of the Act.

Appellant Position The appellant argues that his scoliosis, degenerative disc disease and chronic pain, all significantly limit his ability to perform basic daily living activities. He is capable of about one hour of physical activity before pain accumulates and immobilizes him for a while. Sometimes, depending on the task, he is bedridden for a day or two.

When he shops for groceries, he makes multiple trips over a few days. Showering and getting ready in the morning takes a long time. Cleaning the house takes a day. Three out of five days are “bad days”. In addition, he states he has no help. His grandmother is elderly and although other family members will help when needed, they are busy.

Ministry Position

Mental Functioning The ministry argues that the appellant’s diagnosis of anxiety was assessed to be well controlled in the most recent medical notes. In addition, the information does not confirm a severe degree of impairment or impact to daily functioning.

Physical Functioning The ministry notes that when the appellant’s workplace injury first occurred several years ago, he walked with a cane and had difficulty mobilizing, forward flexion, and was in obvious distress and pain. However, the ministry argues this has not continued in more recent medical notes. While the appellant’s social worker highlights the appellant’s

EAAT (26/10/22) 13